BY Ivan Israelstam, Chief Executive of Labour Law Management Consulting. He may be contacted on (011) 888-7944 or 0828522973 or on e-mail address: ivan@labourlawadvice.co.za. Go to: www.labourlawadvice.co.za
Dereliction of duty charges are popular with employers who want to get rid of employees because:
- the phrase ‘dereliction of duty’ has a serious and damaging ring to it; and
- the penalty for a first offence of gross dereliction of duty could be dismissal.
However, employers need to be extremely careful before using this charge because it has a very specific meaning referring to an intentional or conscious failure of an employee to do his/her duty. Collins Concise dictionary defines dereliction as “conscious or wilful neglect” (especially of duty). The Dictionary of English Synonyms lists, as synonyms for dereliction, “abandonment” and “desertion” which terms have a connotation of intentionally or knowingly failing to do one’s duty. In practice this type of misconduct occurs fairly frequently. Examples include situations where the employee:
- Abandons an asset of the employer in a place where it as at risk. For instance, a company driver might leave the company vehicle in order to visit a friend despite being well aware that the location is a crime-ridden neighbourhood
- Ignores the client’s he/she is supposed to be serving in order to finish off the cashing up or administrative work early
- Knowingly fails to switch on the safety device of a machine operated by a subordinate or colleague
- Downloads data from a website that the employee knows is infested with viruses
- Fails to implement the spy ware security procedures because he/she is in a hurry to leave
- Deserts his post as a security officer without an acceptable reason
- Gives the strongroom keys to an unauthorized person in order to be able to go on a long lunch.
Dereliction of duty cannot be used in every case where employees have performed their work poorly or failed to carry out instructions. Such problems can very often result, not from intentional or conscious decisions, but from lack of skill, faulty equipment, misunderstanding of the instruction, over zealousness or other less sinister reasons. Regardless of how seriously the latter list of causes might be viewed they do not constitute dereliction of duty because they lack the element of intent or consciousness.
Furthermore, even where an employer truly believes that the employee’s failure to perform is intentional, the employer still has the onus of proving this contention. The employer, enraged because he/she lost a client due to the employee’s bungle, might fire him/her for dereliction of duty. The employer is basing the charge, not on evidence of intentional neglect, but on the infuriating and disastrous consequence of the botch up.
Thus, where employers allow emotion to enter into the equation, they often come off second best at the CCMA or bargaining council. For example, in the case of Joseph vs Standard Bank of SA (2001, 8 BALR 868) Joseph was dismissed for breaching the rule that there must be at least two officials present when money was being prepared for collection. The CCMA commissioner found that Joseph had in fact broken this rule and was guilty of dereliction of duty. However, as the manager concerned had charged the employee out of “spite” rather than out of concern for the security of the bank, the arbitrator found that the dismissal was unfair. The employer was therefore required to pay the employee 12 months’ remuneration in compensation.
The main danger is that dereliction of duty is too often used as overkill when a charge of ordinary poor performance or negligence would do. However, the opposite mistake is also made. This is where the employee’s poor performance is permeated with wilful failure to do his/her duty with serious consequences, but the employer disciplines the employee for mere poor performance and gives him/her a warning. This gives the employee the wrong message that what he did was not serious. It also may set a precedent for other employees who might ‘get away with murder’ because the first case set too low standards on which performance is measured. The employer will have then to put up with a series of repeated cases of dereliction of duty and the damage it causes before being able to dismiss the employee.
In the light of the above dangers, employers are advised to use experts in labour law to:
- Draw up their workplace rules and standards of performance
- Train management in implementing discipline and control
- Analyse suspected infringements carefully in order to be able to choose the legally appropriate wording for the charges against errant employees.
